IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

 

JOHN D. COCKSHUTT, 

Plaintiff, 

 vs. Case No. 2:12-cv-532 

 Magistrate Judge King 

 

STATE OF OHIO, DEPARTMENT OF 

REHABILITATION & CORRECTION, 

et al., 

 

 Defendants. 

 

 

 OPINION AND ORDER 

Plaintiff John D. Cockshutt, a state prisoner, filed this action 

on June 18, 2012, against Trooper Schmutz and twelve employees of the 

Ohio Department of Rehabilitation and Correction (“ODRC”), the Madison 

Correctional Institution (“MaCI”), and the Lebanon Correctional 

Institution (“LoCI”), alleging that his security level was increased 

because of a false conduct charge, thereby denying him his rights to 

due process and to be free from cruel and unusual punishment. This 

matter is now before the Court, with the consent of the parties 

pursuant to 28 U.S.C. § 636(c), for consideration of Defendant 

Sergeant Bo Schmutz’s Motion to Dismiss (“Motion to Dismiss”), Doc. 

No. 31, Plaintiff’s Response to Defendant Sargeant Bo Schutz’s Motion 

to Dismiss (“Plaintiff’s Response to Motion to Dismiss”), Doc. No. 38, 

and defendant Schmutz’s reply, Doc. No. 41. Without first seeking 

leave to do so, plaintiff has also filed a sur-reply, Doc. No. 50. 

Also before the Court is plaintiff’s motion for leave to amend 

the Complaint, Motion to Take Leave to Amend Pleadings (“Plaintiff’s 

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Motion to Amend”), Doc. No. 40. Defendant Schmutz opposes Plaintiff’s 

Motion to Amend on the basis that amendment would be futile. 

Memorandum in Opposition of Defendant Bo Schmutz to Plaintiff’s Motion 

for Leave to Amend His Complaint (“Schmutz’s Response”), Doc. No. 52. 

Some of the remaining individual defendants have filed a notice of 

intent not to oppose Plaintiff’s Motion to Amend, see Doc. No. 51, 

and other defendants, Mr. Pierce and Ernie Moore,1

 have not filed a 

response. Plaintiff has filed a reply, Plaintiff’s Surreply Brief, 

Doc. No. 57. For the reasons that follow, Plaintiff’s Motion to 

Amend, Doc. No. 40, is GRANTED in part and DENIED in part. Defendant 

Schmutz’s Motion to Dismiss, Doc. No. 31, is GRANTED. 

I. Background 

The proposed amended complaint2

 alleges that, while incarcerated 

at MaCI, plaintiff was investigated for his alleged involvement in a 

plot to smuggle a gun into MaCI so that he could kidnap a nurse, 

escape from MaCI, and then murder the nurse. Plaintiff’s Motion to 

Amend, p. 10. During this investigation, defendant Schmutz allegedly 

interrogated plaintiff without identifying himself as an Ohio State 

Trooper and without reading plaintiff his Miranda rights. Id. at pp. 

9-11. The proposed amended complaint also alleges that defendant 

Schmutz, and nearly every other defendant, falsely informed plaintiff 

that Ronald May was the confidential informant who provided 

information about the alleged plot. Id. These actions, plaintiff 

 

1

 Defendant Ernie Moore was served with process on May 13, 2013. See Doc. No. 

80. 

2

 The proposed amended complaint is attached to Plaintiff’s Motion to Amend as 

the Memorandum of Support. 

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alleges, resulted in a “false conduct report” that has been included 

in plaintiff’s institutional record. Id. at pp. 10-11. 

As a result of the alleged false conduct report and other 

allegedly false evidence, plaintiff was found guilty at a Rules 

Infraction Board (“RIB”) hearing of attempting to escape and 

attempting to convey firearms into the institution. Id. at pp. 3-4, 

8, 11-12. Plaintiff was also “placed in isolation for six months” and 

transferred to a higher security prison, which has caused plaintiff 

“to have a mental breakdown” and has caused “serious physical 

deterioration of” plaintiff’s health. Id. at pp. 11-12. 

The proposed amended complaint further alleges that plaintiff’s 

chance of release on parole has been “jeopardized” because “the 

inclusion of the false conduct report in [plaintiff’s] institutional 

record will likely cause his [p]arole to be denied.” Id. at p. 11. 

According to the proposed amended complaint, had defendant Schmutz 

identified himself as an Ohio State Trooper during the investigation, 

plaintiff would have called defendant Schmutz as a witness at the RIB 

hearing and he would have likely not been found guilty. 

II. Standard 

Whether or not to grant leave to amend a pleading under Fed. R. 

Civ. P. 15(a)(2) falls within the district court’s discretion. 

General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 

1990). In exercising that discretion, the trial court may consider 

such factors as “undue delay, bad faith or dilatory motive on the part 

of a movant, repeated failure to cure deficiencies by amendments 

previously allowed, undue prejudice to the opposing party by virtue of 

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allowance of the amendment [and] futility of the amendment.” Foman v. 

Davis, 371 U.S. 178, 182 (1962). 

 “A proposed amendment is futile if the amendment could not 

withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford 

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing 

Thiokol Corp. v. Dep’t of Treasury, Revenue Div., 987 F.2d 376, 382-83 

(6th Cir. 1993)). A motion to dismiss under Rule 12(b)(6) attacks the 

legal sufficiency of the complaint. See Roth Steel Prods. v. Sharon 

Steel Co., 705 F.2d 134, 155 (6th Cir. 1983). In determining whether 

dismissal on this basis is appropriate, a complaint must be construed 

in the light most favorable to the plaintiff, and all well-pleaded 

facts must be accepted as true. See Bower v. Fed. Express Corp., 96 

F.3d 200, 203 (6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F. 

Supp. 734, 738 (S.D. Ohio 1994). The United States Supreme Court has 

explained that “once a claim has been stated adequately, it may be 

supported by showing any set of facts consistent with the allegations 

in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546 

(2007). However, a plaintiff’s claim for relief “requires more than 

labels and conclusions, and a formulaic recitation of the elements of 

a cause of action will not do.” Id. at 555. “Factual allegations 

must be enough to raise a right to relief above the speculative 

level[.]” Id. Accordingly, a complaint must be dismissed – and a 

motion for leave to amend a complaint must be denied – if the 

complaint or proposed amended complaint does not plead “enough facts 

to state a claim to relief that is plausible on its face.” Id. at 

570. 

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III. Discussion 

As noted supra, plaintiff’s proposed amended complaint alleges 

that his security level was increased based on a false conduct charge, 

thereby denying him his rights to due process and to be free from 

cruel and unusual punishment. Plaintiff also alleges that he did not 

receive Miranda warnings prior to being interrogated at MaCI in June 

2010. 

As an initial matter, plaintiff concedes that the proposed 

amended complaint asserts no new substantive allegations against 

defendant Schmutz. See Plaintiff’s Reply, p. 1 (“First, it should be 

noted that the leave to amend being sought does not in any way affect 

this Defendant.”). The Court notes, however, that the proposed 

amended complaint now asserts claims against defendant Schmutz in his 

official capacity. See Plaintiff’s Motion to Amend, p. 9. 

 Official capacity suits “‘generally represent only another way of 

pleading an action against an entity of which an officer is an 

agent.’” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting 

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). “[A]n 

official-capacity suit is, in all respects other than name, to be 

treated as a suit against the entity.” Id. (citing Brandon v. Holt, 

469 U.S. 464, 471-72 (1985)). In the instant action, defendant 

Schmutz is an officer of the Ohio State Highway Patrol. This state 

agency is immune from suit in this Court by virtue of the Eleventh 

Amendment to the United States Constitution. See Beil v. Lake Erie 

Corr. Records Dept., 282 F. App’x 363 (6th Cir. 2008). See also 

Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (Eleventh 

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Amendment sovereign immunity applies not only to the states themselves 

but also to “state agents and instrumentalities”). The Eleventh 

Amendment does not, however, preclude official capacity claims for 

prospective injunctive relief. Ex parte Young, 209 U.S. 123 (1908). 

 In the case presently before the Court, the proposed amended 

complaint does not contain a demand for relief beyond asking that the 

Court grant “relief.” See Plaintiff’s Motion to Amend, p. 12. The 

Complaint, however, seeks monetary damages and the expungement of the 

alleged false conduct report. Complaint, p. 10. Plaintiff’s 

requested expungement would be retroactive in nature. See Belill v. 

Hummel, 835 F.2d 877, 1987 WL 24114, at *5 (6th Cir. Dec. 1, 1987). 

Because plaintiff seeks only retroactive relief and monetary damages, 

defendant Schmutz is entitled to Eleventh Amendment immunity on 

plaintiff’s official capacity claims. 

 Plaintiff’s due process claims against defendant Schmutz are 

premised on (1) defendant Schmutz’s alleged failure to identify 

himself as a state trooper and to provide Miranda warnings prior to 

interrogating plaintiff at MaCI in June 2010 about the alleged plot to 

convey a gun into MaCI and (2) jeopardizing plaintiff’s chances of 

release on parole by including a false conduct report in his 

institutional record. See Plaintiff’s Response to Motion to Dismiss, 

pp. 5-6. The proposed amended complaint fails to state a claim 

against defendant Schmutz on either theory. 

 First, regardless of whether Miranda warnings were required when 

plaintiff was investigated in June 2010, see Howes v. Fields, -- U.S. 

--, 132 S.Ct. 1181 (2012), plaintiff cannot state a cause of action 

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under § 1983 based solely on the failure to give Miranda warnings; the 

proper remedy for a Miranda violation is the exclusion of evidence in 

a criminal proceeding. McLoughlin v. Maxwell, 705 F.2d 456, 1982 U.S. 

App. LEXIS 11837, at *2-3 (6th Cir. Aug. 3, 1982) (“Although the 

failure to give Miranda warnings may result in the exclusion of a 

statement from evidence in a criminal trial, it does not subject the 

officer to liability for damages under the Civil Rights Act.”). See 

also Jones v. Cannon, 174 F.3d 1271, 1290-91 (11th Cir. 1999) (“̔The 

reading of Miranda warnings is a procedural safeguard rather than a 

right arising out of the fifth amendment itself. . . . Thus, the 

remedy for a Miranda violation is the exclusion from evidence of any 

compelled self-incrimination, not a section 1983 action[.]’”) (quoting 

Warren v. City of Lincoln, 864 F.2d 1436, 1442 (8th Cir. 1989)). 

Accordingly, plaintiff has failed to state a colorable due process 

claim based on defendant Schmutz’s alleged failure to provide Miranda 

warnings. 

 As to the second alleged due process violation, the proposed 

amended complaint alleges that the inclusion of a false conduct report 

in plaintiff’s institutional record and the increase in plaintiff’s 

security status violates the due process clause because it “will 

likely cause [plaintiff’s] [p]arole to be denied,” and thus, will 

“jeopardize[]” his liberty interest in release on parole. Plaintiff’s 

Motion to Amend, pp. 10-11. To establish a procedural due process 

violation, a plaintiff “must show that the state deprived him or her 

of a constitutionally protected interest in ̔life, liberty, or 

property’ without due process of law.” Swihart v. Wilkinson, 209 F. 

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App’x 456, 458 (6th Cir. 2006) (quoting Zinermon v. Burch, 494 U.S. 

113, 125 (1990)). 

 In the case presently before the Court, plaintiff has failed to 

allege that he has been deprived of a constitutionally protected 

liberty or property interest. First, the proposed amended complaint 

alleges that plaintiff’s liberty interest in parole has been 

“jeopardized” in that his parole “will likely” be denied. Plaintiff’s 

Motion to Amend, pp. 10-11. These allegations are insufficient to 

state a due process claim because they are based on mere specultaiton. 

Second, the United States Constitution does not guarantee an inmate’s 

release on parole, Greenholtz v. Inmates of Neb. Penal & Corr. 

Complex, 442 U.S. 1, 7 (1979); Swihart, 209 F. App’x at 458, and 

“̔[t]he state of Ohio has not created a liberty interest in parole 

eligibility, as it has a completely discretionary parole system.’” 

Michael v. Ghee, 498 F.3d 372, 378 (6th Cir. 2007) (quoting Swihart, 

209 F. App'x at 458-59). See also Saunders v. Williams, 89 F. App’x 

923, 924 (6th Cir. 2003); State ex rel. Hattie v. Goldhardt, 630 

N.E.2d 696, 698 (Ohio 1994); O.R.C. § 2967.03 (providing that Ohio’s 

adult parole authority “may” grant parole to a parole-eligible inmate 

under certain circumstances). 

 To the extent that plaintiff alleges that his transfer to LoCI 

violates the due process clause, plaintiff has failed to state a 

colorable claim for relief. An inmate has no constitutional right to 

be incarcerated in a particular institution, Olim v. Wakinekona, 461 

U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); 

Crosky v. Ohio Dept. of Rehab. & Corr., No. 2:09-cv-400, 2012 WL 

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748408, at *9 (S.D. Ohio Mar. 8, 2012), “or to enjoy a particular 

security classification.” Crosky, 2012 WL 748408 at *9 (citing 

Montanye v. Haymes, 427 U.S. 236, 242 (1976)). Plaintiff has also 

failed to allege that defendant Schultz had any involvement in the RIB 

hearing, in filing the alleged false conduct charge, or in the 

decision to transfer plaintiff to LoCI. 

 Finally, plaintiff alleges that the false allegations made 

against him, being “placed in isolation for six months,” and being 

transferred to LoCI “constitute cruel and unusual punishment.” 

Plaintiff’s Motion to Amend, p. 12. The Eighth Amendment prohibits 

punishment that contravenes the civilized standards of humanity and 

decency, or which involves the unnecessary and wanton infliction of 

pain. See Estelle v. Gamble, 429 U.S. 97, 102–03 (1976) (citations 

omitted). To prove an Eighth Amendment violation, an inmate must show 

that he has been deprived of the minimum civilized measures of life’s 

necessities. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). 

However, “placement in segregation is a routine discomfort that is a 

part of the penalty that criminal offenders pay for their offenses 

against society [and] it is insufficient to support an Eighth 

Amendment claim.” Estep v. Million, 191 F.3d 451, 1999 U.S. App. 

LEXIS 23827, at *2-3 (6th Cir. Sept. 24, 1999) (citing Hudson v. 

McMillian, 503 U.S. 1, 9 (1992)). Moreover, plaintiff makes no 

factual allegations about the actual conditions of his confinement, 

nor does he allege that the RIB proceedings resulted in the 

lengthening of his prison sentence, the withdrawal of good-time 

credits, or the deprivation of any necessities of life. Accordingly 

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the proposed amended complaint fails to state a colorable Eighth 

Amendment claim as to defendant Schmutz. 

 In sum, the allegations in the proposed amended complaint, even 

taken as true, fail to state a colorable claim for relief against 

defendant Schmutz. Accordingly, as to defendant Schmutz, Plaintiff’s 

Motion to Amend, Doc. No. 40, is futile and, thus, it is DENIED. As 

to the claims against the remaining defendants, Plaintiff’s Motion to 

Amend is GRANTED. 

Plaintiff’s Motion to Amend indicates that the proposed amended 

complaint is attached to the Motion to Amend as the Memorandum of 

Support. The Clerk is therefore DIRECTED to indicate on the docket 

that Doc. No. 40 is both the Amended Complaint and a Motion to Amend 

the Complaint. 

 Plaintiff concedes that there are no substantive differences, as 

to defendant Schmutz, between the Amended Complaint and the Complaint.3

 

See Plaintiff’s Reply, p. 1. The Complaint therefore also fails to 

state a colorable claim against defendant Schmutz. Accordingly, 

defendant Schmutz’s Motion to Dismiss, Doc. No. 31, is GRANTED. 

June 3, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

 

3

 The proposed amended complaint actually asserts new claims against defendant 

Schmutz in his official capacity. However, as discussed supra, plaintiff’s 

official capacity claims cannot proceed. 

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